from the this-climate-of-fear-is-corroding-free-speech dept

In the wake of the Sandy Hook tragedy, P.T., a 15 year old high school sophomore (in Ohio) posted the following to his Facebook page:

"Kids were shot. Who cares? Dead kids are dead kids. Murder is a good thing.

This is a serious status. I really think murder is a good thing. It doesnt (sic) matter who is getting killed as long as there is killing. I have been saying for years now that there needs to be another mass murder, I have said this too (sic) many people. The fact they were kids just makes me laugh. I'd have done this job myself if I could have.

All forms of life are insignificant. Doesnt (sic) matter if they die today, tomorrow, or in 30 years. They are going to die. I might as well help them out."[emphasis added]

Two things happened in response to this comment. First, Cory, an online acquaintance of P.T.’s, and P.T. exchanged words. Cory said P.T. should watch P.T.’s back; P.T. said he would “shit fury all over [Cory] and [Cory] will drown in it.”

Separately, several parents of students and students who came across the Facebook posts expressed concern to the police and to the principal of Wilmington High School. P.T. was arrested, detained and underwent a psychological assessment. He was also charged with “menacing” (R.C. 2903.21(A)) and “inducing panic” (R.C. 2917.31(A)(3)). The school monitored the situation, and sent out a robocall advising parents that it had the situation under control. Significantly, neither Cory, nor the principal of Wilmington High School stated that either of them viewed P.T.’s statements as a threat (the principal was more equivocal about it).

Before we get into the discussion of the validity of these charges (and other concerns], let's take a look at the entire conversation, as quoted in the court decision.

The conversation between Cory and P.T. [following the statement quoted above] went as follows:

CORY: so [sic] what your [sic] saying is, If [sic] someone just walked up shot your mother, father, siblings right in front of you, Yoou [sic] would just laugh?

P.T.: Yes, I would.

CORY: You might want to watch your back, chances are someone will see this and they will jump your ass

P.T.: What the fuck did you just fucking say about me, you little bitch? I'll have you know I graduated top of my class in the Navy Seals, and I've been involved in numerous secret raids on Al-Quaeda [sic], and I have over 300 confirmed kills. I am trained in gorilla (sic) warfare and I'm the top sniper in the entire US armed forces. You are nothing to me but just another target [sic] I will wipe you the fuck out with precision the likes of which has never been seen before on this Earth, mark my fucking words. You think you can get away with saying that shit to me over the Internet? Think again, fucker. As we speak I am contacting my secret network of spies across the USA and your IP is being traced right now so you better prepare for the storm, maggot. The storm that wipes out the pathetic little thing you call your life. You're fucking dead, kid. I can be anywhere, anytime, and I can kill you in over seven hundred ways, and that's just with my bare hands. Not only am I extensively trained in unarmed combat, but I have access to the entire arsenal of the United States Marine Corps and I will use it to its full extent to wipe your miserable ass off the face of the continent, you little shit. If only you could have known what unholy retribution your little "clever" comment was about to bring down upon you, maybe you would have held your fucking tongue. But you couldn't, you didn't, and now you're paying the price, you goddamn idiot. I will shit fury all over you and you will drown in it. You're fucking dead, kiddo.

If you've been on the internet for any length of time, you'll recognize that last "statement" as being a direct quote of a well-known meme that first appeared a few years back at (where else) 4chan.

The inclusion of this epic and familiar bit of trash talk seems to indicate that P.T.'s original post maybe wasn't quite as serious as he claimed it was. His initial statement may have been nothing more than a particularly horrible form of trolling. (To the extent that it got a small rise out of his online acquaintance, it arguably worked.) Not only that, but Cory stated he never felt threatened by P.T.'s posts.

The court addresses this final, copy-pasted "statement" briefly in its decision ("In response, P.T. posted a lengthy statement stating that he will "shit fury all over you and you will drown in it. You're fucking dead, kiddo.") but swiftly moves past that (apparently unaware of its origins) to deal exclusively with P.T.'s initial statement.

P.T.'s argument that he made no direct threat and that his post was "untargeted" ultimately made no difference in the court's interpretation of the statutes he was charged under.

As to the charge of "menacing," the court declared:

The reach of R.C. 2903.22(A) is not so narrow as to be restricted only to conduct constituting an overt threat as P.T. suggests. Rather, the statute proscribes a much broader spectrum of behavior by criminalizing any conduct engaged in by a person knowing that such conduct would cause another to believe the offender will cause the other person, or the other’s family, physical harm. In the present case, P.T. posted on Facebook—knowing that it is a website readily accessible to many individuals living in the Wilmington area— endorsing the events that occurred at Sandy Hook and stating that if he had the means to accomplish such a shooting, he would have "done the job" himself. Although the posts were not made to or about any particular person, it was reasonable to believe that the posts would be viewed and conveyed through Facebook to individuals associated with the Wilmington school district, where P.T. attended school.

The court also added this somewhat dubious rationale for its decision on the "menacing" charge:

P.T.’s conduct must be viewed, according to the court, “within the context of a highly emotional, fearful, and hyper-vigilant climate existing in the immediate aftermath of the Sandy Hook shooting.”

Allowing emotions, fear and hyper-vigilance to guide legal decisions isn't necessarily a good idea. We've seen the damage done when these are used to guide legislation. Applying this to the criminal justice system tends to encourage prosecutorial and judicial behavior more closely aligned with revenge than the pursuit of justice.

P.T. also argued against the charge of "inducing panic," but this was shot down as well:

P.T.’s Facebook posts caused members of the public to contact police, required weekend meetings between the police, Principal Carey, Wilmington school district’s superintendent and the school district’s business manager, led to the school issuing an “all call,” alerting the entire student body to the situation, triggered a police presence at Wilmington High School on the following day of classes, and resulted in several students being absent from school due to their parents’ fear of what might happen.

Surprisingly, considering the hefty bail amounts and lengthy prison sentences others in the same set of circumstances have met with, P.T.'s sentence comes off as rather lenient, especially considering the court allowed "emotions" and "fear" to guide its decision-making.

End result: P.T. is placed on probation, ordered to serve 55 days on an electronic monitoring unit, participate in family counseling, complete community service, and pay costs.

One of the first aspects that must be addressed is the sentencing. In this case, P.T. was sentenced by a juvenile court (sentence upheld by this decision) and was not charged under any terrorism statutes. The investigation consisted of some questioning and a rational decision by the PD and prosecutors to not pursue anything ridiculous like "terroristic threat" charges. It's not that Ohio doesn't have "terroristic threat" laws -- it does*-- it's just that the reaction here was more muted and more reasonable than others we've seen despite the fact that P.T. posted his "threat" on the same day as the Sandy Hook shooting. Others with more time and emotional distance separating the tragedies and the "threats" have met with harsher punishments from courts not admittedly operating in a climate of "emotion and fear."

*[If anything, Ohio's law is too broad -- "It is not a defense to a charge of a violation of this section that the defendant did not have the intent or capability to commit the threatened specified offense or that the threat was not made to a person who was a subject of the threatened specified offense." -- try getting out of that one should a prosecutor decide to bring terroristic threat charges against you.]

Balasubramani questions the impact such a decision will have on free speech (which could also be applied to Cam D'Ambrosio and Justin Carter's cases), especially seeing as the court didn't even raise the issue. (Granted, neither did the defendant.)

The court glosses over the question of whether P.T.'s statement was a "true threat," and the available evidence indicated that it wasn't. The language used by P.T. was clearly conditional. Neither P.T.'s online acquaintance nor the principal viewed it as such. (Cory and P.T. had a separate exchange of words, but the court does not use this as a basis for affirming.) Sure, it's distasteful and even abhorrent speech, but that does not make it unprotected speech…

In any event, the court's refusal to even tackle the First Amendment question is a bummer. Maybe online threat posts are the new "fire in a crowded theater"? Either way, my sense is that there are a growing number of cases involving online postings where courts do not engage in any First Amendment analysis--and online speech is suffering as a result.

This is problematic. The heightened sensitivity in the wake of tragedies tends to result in overreaction. Unfortunately, it seems as though this "sensitivity" will never go away, thanks to the advent and expansion of anti-terrorist laws in the wake of 9/11, which gives prosecutors a new tool to use to punish ill-advised online statements. The uptick in monitoring of students' off-campus speech further exacerbates this charged situation.

By all means, officials can and should investigate perceived threats. But the common response so far has been to detain, charge and lock up teens with faulty brain-to-keyboard filters first and ask questions (or investigate) later. The system isn't working the way it should when these investigations turn up nothing but the prosecutors still feel compelled to pursue felony "terrorist" charges in response to clumsy executions of protected speech.